Tuesday, January 21, 2014

Insurance ‘exclusions’ a breach of the law

By Lukoye Atwoli
Sunday Nation 19 January 2014

People with mental illnesses tend to be poorer than those in good mental health for several reasons. First,
poverty appears to increase the risk of several mental illnesses,
especially the more severe, debilitating ones. This is because the
social environment plays an important role in determining an
individual’s mental health, apart from their physical and psychological
condition.

Second, mental illnesses inevitably interfere with an
individual’s ability to attend to their daily activities, reducing their
potential to earn an income and achieve prosperity. Obviously,
then, poverty and mental illness create a vicious cycle that obviates
the need to attempt to discover which of them came first.

Eventually,
in order to address either condition, one must deal with the other.
Thus in treating mental illnesses, measures must be taken to ensure
continued productivity of the patient and, similarly, poverty
eradication must build in measures to address mental ill-health.

In Kenya, most people pay for their health care out of pocket, and only a tiny minority can afford medical insurance. This
is more so for those suffering from mental disorders. Getting a chronic
illness, such as a mental disorder, is therefore often a ticket to
poverty for most Kenyans.

EXCLUSION CLAUSE

Unfortunately, it is now emerging that even having medical insurance is not enough for many people with mental illnesses. Many
insurers are getting into the habit of using the flimsiest of excuses
to exclude payment for the treatment of mental illness. The commonest
excuse is that there is a mental illness exclusion clause in the policy.

Other insurers, who purport to cover mental illnesses as well, often refuse to pay for treatment of specific conditions. The
most commonly encountered “exclusions” are alcohol and substance abuse
and suicidal behaviour. It is time we put an end to this inhumane
behaviour that causes so much suffering for families that are already
distressed.

Section 46 of the Mental Health Act, Cap 248 of the
Laws of Kenya, provides that “no insurance company shall make any
insurance policy providing insurance against sickness, which excludes or
restricts the treatment of persons suffering from mental disorder.”
Part two of this section makes it an offence to make such an insurance
policy.

What this means is that every person in Kenya who has any
insurance against any sickness is covered for treatment of mental
illness. No insurance policy can reverse this. Therefore all those
purported “exclusions” are in breach of the law, and any insurer who
engages in such behaviour can be sued and compelled to pay for the
treatment of mental illness.

LEGITIMATE EXCLUSIONS

As
to the argument that alcohol and other substance-related disorders can
be legitimate exclusions, this is what Section 2 of the Mental Health
Act has to say:

“Person suffering from mental disorder” means a
person who has been found to be so suffering under this Act and includes
a person diagnosed as a psychopathic person with mental illness, and
person suffering from mental impairment due to alcohol or substance
abuse (emphasis mine).

In other words, alcohol and substance abuse
(and related disorders) are rightfully considered as mental disorders
for the purposes of Section 46, and no insurer can refuse to cover them
for any reason whatsoever.

Unless insurers stop this
discriminatory behaviour, they must prepare for the flurry of litigation
that will inevitably come as Kenyans increasingly become aware of their
rights!

Dr Atwoli is a consultant psychiatrist and senior lecturer at Moi University’s School of Medicine. lukoye@gmail.com